Another grace period has been given to negotiators trying feverishly to find agreement this week in Nagoya, Japan on an international instrument protecting countries against unlawful appropriation of their genetic resources and ensuring the fair sharing of benefits arising from the use of those resources. The delegates are to present their text Wednesday to the UN Convention on Biological Diversity meeting so that it can be approved by ministers.

The draft Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits arising from their Utilisation to the Convention on Biological Diversity (ABS), which has been under discussion since its introduction in April 2010, would provide a legal instrument to prevent biopiracy and justly reward the provider countries.

The CBD Conference of the Parties is meeting in Nagoya from 18-29 October.

Today, a new version of the ABS text was available, with some changes in paragraph structure and some brackets cleaned since the last version of 22 October, but still work to do to reach consensus. A draft decision of the Conference of the Parties was also published.

The most contentious issues in the ABS text remain to be sorted out. For instance, the word derivatives, referring to plant extracts, or metabolites (active compounds in plants or animals), is bracketed in many paragraphs throughout the text. Also to be agreed are compliance and scope of the protocol.

Although country delegates and the co-chairs of the Informal Consultative Group (ICG) in charge of negotiating language of the protocol show optimism and report progress, country views on a number of issues are divergent.

During a press briefing yesterday on stock-taking by international non-governmental organisations, Chee Yoke Ling, director of programmes for the Third World Network, said the protocol on ABS has been sought by developing countries since 1992, the creation of the CBD. Article 15 of the CBD already provides an obligation of benefit sharing, but “in reality,” she said, the benefit sharing is not taking place.

A legally binding international treaty has to cover all genetic resources, Yoke Ling said, so that “there are no loopholes.” And “without an enforcement mechanism, the protocol will be meaningless,” she said, adding that the core of the protocol is the compliance system and the need for checkpoints, a highly contentious point and one that is partly holding back negotiations.

Article 13 (monitoring, tracking and reporting the utilisation of genetic resources and associated traditional knowledge) of the draft protocol contains a list of six possible checkpoints, including intellectual property offices, research institutions and competent national authority in the user country.

Co-chairs Fernando Casas (Colombia) and Timothy Hodges (Canada)

“This is highly resisted,” said Yoke Ling. Developed countries refuse the list of checkpoints and the compulsory disclosure of the origin of genetic resources, or the traditional knowledge, she said. They want a minimum list of information. “But without some kind of minimum compulsory listing,” checkpoints and disclosure requirements of crucial information, “the international system is meaningless,” she said.

On Monday evening, the European Union was the only party that is a subregion that is blocking an agreement on compliance, specifically on patent offices as checkpoints, a source told Intellectual Property Watch. “They were singled out by the co-chairs as holding up the process and causing a deep crisis of the negotiations,” the source said.

Christine von Weizsächer, president of Ecoropa, a European network following CBD negotiations, told the press briefing that scope is another sticky point, in particular the temporal scope of the protocol. Some countries would like a retroactive effect to the protocol so that genetic resources acquired before the treaty’s entry into force would be covered.

As an illustration of the divergence in views, von Weizsächer presented two quotes. One from an African delegate said, “we need a real solution to this temporal scope. We are not prepared to whitewash or rubberstamp colonial acquisition of our genetic resources.” Meanwhile, a European delegate said “Africa makes it a matter of principle and then we will not have a protocol. The temporal scope for us is clearly spelt out arising from the date of the entry into force of the protocol,” she quoted.

If the temporal scope has no retroactive effect, then past biopiracy will be legitimised, she said. Temporal scope is “a make or break issue,” she said.

In the meantime, working group co-chairs Fernando Casas of Colombia and Timothy Hodges of Canada continue their efforts as they direct work to small groups and engage country negotiators to reach consensus on as many issues as possible before deadline.

Separately, today, small farmers delegates, members of the international peasant movement La Via Campesina, issued a press release calling for an end to the expansion of agrofuel plantations, requesting mandatory information on the origin of biological resources for commercial use, and asking that access and use of biological resources and knowledge should be conditioned on the prior consent of indigenous and local communities.

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[…] This issue was also heavily debated in the context of the adoption of the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity (IPW, United Nations, 26 October 2010). […]

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